Meyrick Estate Management Ltd and Others v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Wall,Lord Justice Lloyd |
| Judgment Date | 01 February 2007 |
| Neutral Citation | [2007] EWCA Civ 53 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2007 |
| Docket Number | Case No: C1/2006/0228 |
[2007] EWCA Civ 53
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SULLIVAN)
CO/2605/05
Lord Justice Chadwick
Lord Justice Wall and
Lord Justice Lloyd
Case No: C1/2006/0228
Mr David Elvin QC and Mr James Maurici (instructed by Defra Legal Services Directorate B2, Nobel House, London SW1P 3JR) for the Appellant
Mr Robert McCracken QC and Mr Meyric Lewis (instructed by Lee Bolton & Lee Solicitors, 1 The Sanctuary, Westminster, London SW1B 3JT) for the Respondents
This is an appeal from an order made on 3 November 2005 by Mr Justice Sullivan in the Administrative Court on an application under Part III of the First Schedule to the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”) by way of challenge to the decision of the Minister of State for Rural Affairs and Local Environmental Quality, acting on behalf of the Secretary of State for Environment, Food and Rural Affairs, to confirm the New Forest National Park (Designation) Order 2002. Effect was given to that decision on 1 March 2005 by the New Forest National Park (Designation) Confirmation Order 2005. The judge upheld the challenge and quashed (in part) the Confirmation Order. Permission to appeal to this Court was granted by Lord Justice Keene on 10 March 2006.
The Designation Order was made by the Countryside Agency pursuant to Part II of the 1949 Act. Following the judge's order of 3 November 2005 – and, as a response to his judgment [2005] EWHC 2618 (Admin)—section 5 of the 1949 Act, which prescribes the criteria for designating areas as National Parks, was amended by the Natural Environment and Rural Communities Act 2006 (“the 2006 Act”). It is common ground that the amendment is not retrospective: in the sense that it does not alter the law by reference to which the question whether the Minister had power to confirm the Designation Order on 1 March 2005 must be determined in these proceedings. Nevertheless, in deciding what order should be made on this appeal, it is necessary to have in mind that (if the judge's order stands) on any future consideration of the question whether the Designation Order should be varied by the Secretary of State will have regard to the amendments introduced by the 2006 Act: section 59(2) of that Act. As I shall explain, the effect of the 2006 Act is to limit the issues which need to be addressed on this appeal.
The legislative framework
The power to designate areas as National Parks is conferred by section 5 of the 1949 Act. At the time that the Designation Order was made by the Countryside Agency (24 January 2002), the section (following amendment by the Environmental Protection Act 1990, the Environment Act 1995 and the Development Commission (Transfer of Functions and Miscellaneous Provisions) Order 1999, SI 1999/416) was in these terms:
“5(1) The provisions of this Part of this Act shall have effect for the purpose —
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting the opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
(2) The said areas are those extensive tracts of country in England as to which it appears to the Agency that by reason of
(a) their natural beauty and
(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,
it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection.
(3) The said areas, as for the time being designated by order made by the Agency and submitted to and confirmed by the Minister, shall be known as, and are hereinafter referred to as, National Parks.”
Paragraph (a) in section 5(1) is to be read in conjunction with section 114(2) of the 1949 Act:
“114(2) References in this Act to the preservation or the conservation of the natural beauty of an area shall be construed as including references to the preservation or, as the case may be, the conservation of its flora, fauna and geological and physiographical features.”
Section 6(1) of the 1949 Act requires the Countryside Agency to consider, from time to time, what areas there are in England falling within section 5(2) and to proceed with their designation at such times as the Agency may determine. Before making a designation order the Agency must consult with any local authority whose area includes any land in the area to be designated: section 7(1). Any designation order shall describe the area to be designated by reference to a map and such other descriptive matter as may appear to the Agency to be requisite: section 7(2).
Section 5(3) of the 1949 Act (following a number of other Transfers of Functions Orders which it is unnecessary to recite) requires that, before the designated area becomes a National Park, the designation order made by the Agency be submitted to and confirmed by the Secretary of State. Section 7(3) gives effect to the provisions in the First Schedule to the Act “as to the making, confirmation, coming into operation and validity of any order designating a National Park”. Section 7(4) provides that the Secretary of State may by order made after consultation with the Agency, vary an order designating a National Park
Paragraph 1 in Part I of the First Schedule to the Act requires that, before a designation order is submitted to the Secretary of State for confirmation, the Agency must give notice in a form which enables representations and objections to be made. Paragraph 2(2) of the schedule provides that if any objection duly made is not withdrawn, the Secretary of State must either cause a local inquiry to be held or afford to the objector an opportunity to be heard by a person appointed for the purpose. After considering the report of the person appointed to hold the inquiry (or to hear the objector, as the case may be) the Secretary of State may confirm the designation order with or without modifications. Paragraph 3 requires that, on confirming a designation order, the Secretary of State must publish a notice stating that it has been confirmed. Paragraph 8 in Part III of the First Schedule provides that, if any person desires to question the validity “of an order to which Part I of this Schedule applies” on the ground that it is not within the powers of the Act, he may (within six weeks of the publication of notice of the confirmation) apply to the High Court. If, on any such application, the court is satisfied that the order is not within the powers of the Act, it may quash the order generally or so far as it affects the applicant.
The Designation Order
The Designation Order made by the Countryside Agency on 24 January 2002 designates as a National Park “all that area of land comprising approximately 670 square kilometres situated in the counties of Hampshire, Wiltshire and Dorset, and bounded by an orange line on the map annexed hereto and further described in the Schedule to this order”. In the context of these proceedings, it is sufficient to note that the designated area extends from the northeastern edge of the New Forest (on the outskirts of Southampton) to the southwestern corner, north of New Milton and Christchurch. It is the boundary at the southwestern corner that is in issue. So far as material, that boundary (as designated in 2002) followed the B3055 westwards for 3 kilometres towards Beckley, then turned north on a loop of minor roads to Beckley Common, rejoined the B3055 for a another 200 metres, and turned south along field boundaries to include Hinton House, Cranemoor Wood and Meetinghouse Plantation, where it joined the mainline railway. The boundary then followed the mainline railway westwards for about two and a half kilometres before turning north to Waterditch Farm, and then west along Preston Lane.
The Hinton Estate
The Hinton Estate comprises some 6,000 acres (2,428 hectares) in and around the village of Bransgore, which is in the southwest corner of the designated area. The estate includes, in particular, Hinton Park and Hinton Admiral House (within the Park) which is the ancestral home of the Meyrick family. The estate is owned by trustees and managed by Meyrick Estate Management Limited. Most, although not all, of the estate (including Hinton Park) lies within the boundary as designated in 2002. The management company lodged an objection to the Designation Order. The basis of that objection was that some 800 acres of the estate – comprising Hinton Park and bounded on the south and east by the boundary proposed by the Designation Order – should be excluded from the designated area on the grounds that it did not meet the criteria prescribed in section 5(2) of the 1949 Act. It is important to have in mind that the effect of the objection, if upheld, would be to alter the boundary of the area designated by the Designation Order by diverting that boundary around, and to the north and west of, Hinton Park. That would take Hinton Park outside the National Park boundary: it would not create an “island” of excluded area within the National Park boundary.
The local inquiry
Following submission of the Designation Order for confirmation—the Secretary of State appointed an inspector to hold...
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